Exhibit 10.54
EXECUTION VERSION
CONFIDENTIAL TREATMENT REQUESTED
REDACTED VERSION
AMENDMENT NUMBER 3
TO
SOLAR WAFER SUPPLY
AGREEMENT
This Amendment Number 3 to Solar
Wafer Supply Agreement (this “ Third Amendment
”) is entered into as of February 16, 2009 by and
between MEMC SINGAPORE PTE. LTD. , a Singapore corporation
(“ MEMC Singapore ”) and wholly-owned subsidiary
of MEMC ELECTRONIC MATERIALS, INC., a Delaware corporation with its
principal place of business at 501 Pearl Drive (City of
O’Fallon), St. Peters, Missouri 63376, United States of
America, or such other designated majority-owned subsidiary of MEMC
ELECTRONIC MATERIALS, INC. (“ MEMC ”), and
GINTECH ENERGY CORPORATION , a Taiwan corporation with its
principal place of business at 8F, no. 396, Sec. 1 Neihu Rd. Neihu
Technology Park, Taipei 114, Taiwan (“ Gintech
”), or its designated majority-owned subsidiary. MEMC
Singapore and Gintech together shall be referred to as the “
Parties ” and individually as a “ Party
”.
RECITALS:
WHEREAS, on October 25, 2006,
MEMC and Gintech entered into that certain Solar Wafer Supply
Agreement (the “ Agreement ”), pursuant to which
MEMC agreed to supply and Gintech agreed to purchase certain
quantities of solar wafers, pursuant to the terms of the Agreement;
and
WHEREAS, on January 1, 2007,
pursuant to Section 7.6 of the Agreement, MEMC assigned the
Agreement to its wholly-owned subsidiary, MEMC Singapore;
and
WHEREAS, on October 25, 2007,
MEMC and Gintech entered into that certain Amendment Number 1 to
Solar Wafer Supply Agreement (the “ First Amendment
”), pursuant to which MEMC agreed to supply and Gintech
agreed to purchase certain additional quantities of solar wafers,
pursuant to the terms of the First Amendment; and
WHEREAS, on November 30, 2008,
MEMC and Gintech entered into that certain Amendment Number 2 to
Solar Wafer Supply Agreement (the “ Second Amendment
”), pursuant to which MEMC agreed to certain non-price and
volume changes to the Agreement; and
WHEREAS, the Parties hereto wish to
amend the Agreement, as amended by the First Amendment and the
Second Amendment, as provided herein by this Third
Amendment:
NOW, THEREFORE, in consideration of
the foregoing and the mutual representations, warranties, covenants
and agreements herein contained, MEMC Singapore and Gintech agree
as follows:
ARTICLE I
AMENDMENT TO SELECTED SECTIONS OF
THE AGREEMENT
1.1 Defined Terms .
Capitalized terms used herein and not otherwise defined herein
shall have the meanings set forth in the Agreement.
1
EXECUTION VERSION
CONFIDENTIAL TREATMENT REQUESTED
REDACTED VERSION
1.2 Revision of Attachment B to
the Agreement and Attachment B-1 to the First Amendment . The
Parties have agreed to amend and revise the price and minimum
volumes for Contract Year three (calendar year 2009) only by
amending only the Multi Wafer Price and Yearly Minimum Quantity
rows for Contract Year three (calendar year 2009) on Attachment B
to the Agreement and Attachment B-1 to the First Amendment as is
set forth on Attachment B-3 to this Third
Amendment.
1.3 Amendment to Obligation to
provide Letter of Credit . Pursuant to Section 3.1(c) of
the Agreement, Attachment B to the Agreement and
Attachment B-1 to the First Amendment, Gintech has the
obligation to provide MEMC Singapore with a total Letter of Credit
Amount by the dates set forth in the Agreement for Contract Year
three (calendar year 2009). As of January 13, 2009, Gintech
had not met this obligation in full. As a result, and in connection
with this Third Amendment, the Parties have agreed to revise the
obligation of Gintech to provide the full Letter of Credit Amount
as is set forth on Attachment B-3 to this Third
Amendment.
1.
